RFQ Attachment 6 STANDARD FORM OF GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER

Transcription

1 RFQ Attachment 6 STANDARD FORM OF GENERAL CONDITIONS BETWEEN OWNER AND DESIGN-BUILDER

2 TABLE OF CONTENTS Article Name Page Article 1 General... 1 Article 2 Design-Builder s Services and Responsibilities... 2 Article 3 Owner s Services and Responsibilities... 9 Article 4 Hazardous Conditions and Differing Site Conditions Article 5 Insurance and Bonds Article 6 Payment Article 7 Indemnification Article 8 Time Article 9 Changes to the Contract Price and Time Article 10 Contract Adjustments and Disputes Article 11 Stop Work and Termination for Cause Article 12 Electronic Data Article 13 Miscellaneous... 22

3 1.1 Mutual Obligations Article 1 General Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents. 1.2 Basic Definitions Agreement refers to the executed Agreement Between Owner and Design-Builder - Cost Plus Fee with an Option for a Guaranteed Maximum Price Basis of Design Documents are as follows: For DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price, the Basis of Design Documents are those documents specifically listed in, as applicable, the GMP Exhibit or GMP Proposal as being the Basis of Design Documents. For DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder Lump Sum, the Basis of Design Documents are the Owner s Project Criteria, Design-Builder s Proposal and the Deviation List, if any Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by the Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed by both the Owner and Design-Builder, as part of the design review process contemplated by Section 2.4 of these General Conditions of Contract Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents Design-Build Team is comprised of the Design-Builder, the Design Consultant, and key Subcontractors identified by the Design-Builder Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of the Design Consultant, but is retained by the Design Consultant or employed or retained by anyone under contract to Design Consultant, to furnish design services required under the Contract Documents Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section and the submission of all documents set forth in Section Force Majeure Events are those events that are beyond the control of both Design- Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God General Conditions refers to this document GMP Exhibit means that exhibit attached to DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price, which exhibit will have been agreed upon by Owner and Design-Builder prior to the execution of the Agreement. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 1

4 GMP Proposal means that proposal developed by Design-Builder in accordance with Section 6.6 of DBIA Document No. 530, Standard Form of Agreement Between Owner and Design-Builder - Cost Plus Fee With an Option for a Guaranteed Maximum Price Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work Owner s Project Criteria are developed by or for Owner to describe Owner s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design-Builder s performance of the Work. Owner s Project Criteria may include conceptual documents, design criteria, design performance specifications, design specifications, and LEED or other sustainable design criteria and other Project-specific technical materials and requirements Site is the land or premises on which the Project is located Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor s Work and shall include materialmen and suppliers Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes Work is comprised of all Design-Builder s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. 2.1 General Services. Article 2 Design-Builder s Services and Responsibilities Design-Builder s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder s Representative may be replaced only with the mutual agreement of Owner and Design-Builder Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule, (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) whether health and safety issues exist in connection with the Work; (iv) status of the contingency account to the extent provided for in the Agreement Between Owner and Design- North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 2

5 Builder - Cost Plus Fee with an Option for a Guaranteed Maximum Price; and (v) other items that require resolution so as not to jeopardize Design-Builder s ability to complete the Work for the Contract Price and within the Contract Time(s) Unless a schedule for the execution of the Work has been attached to the Agreement as an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section hereof, a schedule for the execution of the Work for Owner s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner s review of, and response to, the schedule shall not be construed as relieving Design- Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.2 Design Professional Services Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 2.3 Standard of Care for Design Professional Services The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project. 2.4 Design Development Services Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. Interim design submissions shall be consistent with the Basis of Design Documents, as the Basis of Design Documents may have been changed through the design process set forth in this Section On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted design submissions. Changes to the Basis of Design Documents, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design-Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim design submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder s schedule. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 3

6 2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting and recorded in the meetings minutes. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth in Section above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction Owner s review and approval of interim design submissions, meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner s review nor approval of any interim design submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner To the extent not prohibited by the Contract Documents or Legal Requirements, Design- Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. 2.5 Legal Requirements Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements. 2.6 Government Approvals and Permits Except as identified in an Owner s Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner s responsibility. 2.7 Design-Builder s Construction Phase Services Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. Design- Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction Design-Builder shall employ only Subcontractors who are duly licensed and qualified to North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 4

7 perform the Work consistent with the Contract Documents. Owner may reasonably object to Design-Builder s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner s decision impacts Design-Builder s cost and/or time of performance Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with separate contractors under Owner s control, Design- Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. 2.8 Design-Builder s Responsibility for Project Safety Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-site or off- Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder s personnel, Subcontractors and others as applicable Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safetyrelated matters involving the Project or the Work Design-Builder s responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work. 2.9 Design-Builder s Warranty. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 5

8 2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner. Nothing in this warranty is intended to limit any manufacturer s warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers warranties upon Substantial Completion Correction of Defective Work Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day period identified herein shall be deemed inapplicable The one-year period referenced in Section above applies only to Design-Builder s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder s other obligations under the Contract Documents Apprentice Utilization Requirements The Design-Builder shall ensure that at least 15% of the total construction labor hours utilized on the project are performed by apprentices registered with the Washington State Apprenticeship and Training Council Total labor hours include additional hours worked as a result of change orders Total labor hours exclude hours worked by foremen, superintendents, supervisors, owners, and workers who are not subject to prevailing wage requirements. However, total labor hours shall include the hours worked by supervisors, foremen, and superintendents if it is determined they are subject to prevailing wage requirements pursuant to Washington Administrative Code (WAC) Total labor hours include all hours worked by the Design-Builder and all subcontractors on the Project The Design-Builder shall meet or exceed the apprentice utilization requirements of the Contract Documents on all labor hours on the Project The Design-Builder shall include the apprentice utilization requirements of this section in all subcontracts executed for the Project. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 6

9 If, during the term of the Agreement, the Design-Builder determines that it will be unable to meet the percentage utilization requirement in Paragraph A, above, the Design-Builder may make a written request to the Owner to reduce the required percentage. The request shall include documentation of: The Design-Builder s good faith efforts to use registered apprentices; and/or The lack of availability of registered apprentices; and/or A disproportionately high ratio of material costs to labor hours, which makes infeasible the required minimum level of apprentice participation The Owner shall evaluate the request, and if appropriate, a change order shall be prepared by the Owner reducing the utilization requirement With its monthly Application for Payment, the Design-Builder shall submit the Apprentice and Journey Level Worker Utilization Report on the form provided by the Owner Business Equity Requirements General Requirements To achieve the aspirational goals set forth in the Preliminary Agreement and the Agreement, Design-Builder shall implement an Outreach Plan, reviewed and approved by Owner, outlining the proactive strategies, resource commitments, and specific steps the Design-Builder will take to effectively reach out to small business entities (sbe), disadvantaged business enterprises (dbe), as well as Minority Business Enterprises (MBE), Women Business Enterprises, (WBE), and Minority Women Business Enterprises (MWBE), state-certified and non state-certified, as subcontractors, subconsultants and suppliers for this project. In addition to addressing outreach to sbe/dbe/mbe/wbe/mwbe, the Outreach Plan shall describe the specific activities the Design- Builder will undertake in its efforts to achieve equitable utilization of these businesses. Design-Builder shall comply with the following requirements: In accordance with Chapter RCW, it is the policy of the State of Washington to provide the maximum practicable opportunity for increased participation by minority and women-owned and controlled businesses in public works. The Washington State Office of Minority and Women s Business Enterprises (OMWBE) certifies firms that are owned and controlled by minorities or women, and can provide information regarding the certification process. Information about the certification status of a particular firm is available at the following OMWBE website address: or by contacting OMWBE at (360) , 406 South Water, P.O. Box 41160, Olympia, Washington Affirmative Efforts Design-Builder shall: (a) Advertise opportunities for subcontractors, subconsultants and suppliers in a manner reasonably designed to provide sbe/dbe/mbe/wbe/mwbe capable of performing the work with timely notice of such opportunities, and all advertisements shall include a provision encouraging participation by sbe/dbe/mbe/wbe/mwbe Advertising may be done through general advertisements (e.g., newspapers, and journals) or by soliciting bids/proposals directly from sbe/dbe/mbe/wbe/mwbe. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 7

10 (b) Provide sbe/dbe/mbe/wbe/mwbe that express interest with adequate and timely information about plans, specifications, and requirements of the Agreement Design-Builder is further encouraged to: Reporting Requirements (a) Break down total requirements into smaller tasks or quantities, where economically feasible within the Project budget, in order to permit maximum participation by sbe/dbe/mbe/wbe/mwbe and other small businesses. (b) Establish delivery schedules, where the requirements of the Agreement permit, that encourage participation by sbe/dbe/mbe/wbe/mwbe and other small businesses. (c) Reduce bonding requirements where practicable. (d) Utilize the services of available women/minority community organizations, minority contractor groups, and other organizations that provide assistance in recruitment and placement of sbe/dbe/mbe/wbe/mwbe and other small business Prior to Application of First Progress Payment and as needed during this project, Design-Builder shall submit a list of sbe/dbe/mbe/wbe/mwbe subcontractors, subconsultants and suppliers it intends to use Prior to Final Acceptance, Design-Builder shall submit a report of total dollar amounts paid to sbe/dbe/mbe/wbe/mwbe With the monthly Payment Application, Design-Builder shall submit a report in a format provided by the Owner showing the sbe/dbe/mbe/wbe/mwbe subcontractors, subconsultants and suppliers it has utilized during the preceding month and the dollar amounts paid to those firms Non-Discrimination Design-Builder shall not create barriers to open and fair opportunities to all businesses, including sbe/dbe/mbe/wbe/mwbe, to participate in University contracts and to obtain or compete for contracts and subcontracts as sources of suppliers, equipment, construction and services. In considering offers from and doing business with subcontractors and suppliers, the Design-Builder shall not discriminate on the basis of race, color, creed, religion, sex, age, nationality, marital status, or the presence of any mental or physical disability in an otherwise qualified disabled person Sanctions Failure to comply with any of the mandatory requirements of this part of the Agreement may subject the Design-Builder to sanctions or damages as provided for by RCW , or by other applicable laws. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 8

11 3.1 Duty to Cooperate. Article 3 Owner s Services and Responsibilities Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design- Builder s timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder s performance of its obligations under the Contract Documents Owner shall endeavor to provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder s schedule. 3.2 Furnishing of Services and Information To the extent they are available and already in existence, Owner shall provide, at its own cost and expense, for Design-Builder s information and use the following, all of which Design- Builder is entitled to rely upon in performing the Work: Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and utility lines; Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site; Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work; Record drawings of any existing structures at the Site; and Environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys fees, incurred in securing these necessary agreements. 3.3 Not Used. 3.4 Owner s Representative Owner s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner. 3.5 Government Approvals and Permits Owner shall obtain and pay for all zoning, zoning variances, and land-use permits required for the design and construction of the Work, as may be required by regulatory agencies having jurisdictions over the Project. All other permits, government charges inspection fees, and licenses required to perform and complete the Work, including but not limited to the plan check fees, building permits, occupancy permit, as well as any renewals and penalties, shall be the sole responsibility of Design-Builder. Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, approvals and licenses that are Design-Builder s responsibility. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 9

12 3.6 Owner s Separate Contractors Owner shall require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. 4.1 Hazardous Conditions. Article 4 Hazardous Conditions and Differing Site Conditions Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi-government entities with jurisdiction over the Project or Site Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner s expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and expenses, including attorneys fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall indemnify, defend and hold harmless Owner and Owner s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. 4.2 Differing Site Conditions If Design Builder encounters conditions at the site which are subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents, or unknown physical conditions of an unusual nature which differ materially from North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 10

13 those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Design Builder shall give written notice to Owner, as described in Article 10. Conditions shall not be disturbed prior to such notice If such conditions differ materially and cause a change in Design Builder s cost of, or time required for, performance of any part of the Work, the Design Builder may be entitled to an equitable adjustment in the Contract Time or Contract Sum, or both, provided a request for equitable adjustment is made in in accordance with Article 10. Article 5 Insurance and Bonds 5.1 Design-Builder s Insurance Requirements Design-Builder is responsible for procuring and maintaining the insurance for the coverage amounts all as set forth in the Insurance Exhibit to the Agreement Design- Builder s insurance policies shall not contain any language that could compromise coverages because of the design-build delivery of the Project Other requirement are set forth in the Agreement. 5.2 Owner s Liability Insurance. Not Used. 5.3 Owner s Property Insurance. Requirements for Owner s Property Insurance are set forth in the Agreement. 5.4 Bonds and Other Performance Security. Requirements for Bonds and Security are set forth in the Agreement. Article Schedule of Values. Payment Unless required by the Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work The Owner will timely review and approve the schedule of values so as not to delay the submission of the Design-Builder s first application for payment. The Owner and Design-Builder shall timely resolve any differences so as not to delay the Design-Builder s submission of its first application for payment. 6.2 Monthly Progress Payments On or before the date established in the Agreement, Design-Builder shall submit for Owner s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section hereof. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 11

14 6.2.2 The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances All discounts offered by Subcontractor, Sub-Subcontractors and suppliers to Design- Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design-Builder advances payment. Unless Owner advances payment to Design-Builder specifically to receive the discount, Design-Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought The Application for Payment shall constitute Design-Builder s representation that the Work described herein has been performed consistent with the Contract Documents, that all subconsultants, subcontractors, and suppliers have been paid, less applicable earned retainage in accordance with RCW , as their interests appeared in the last preceding Application for Payment, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder s receipt of payment, whichever occurs earlier. 6.3 Withholding of Payments On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an Application for Payment as a result of Design-Builder s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner s concerns. Design-Builder and Owner will attempt to resolve Owner s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof Not Used. 6.4 Not Used. 6.5 Design-Builder s Payment Obligations Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic s liens as set forth in Section 7.3 hereof. 6.6 Substantial Completion Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is Substantially Complete. Within five (5) days of Owner s receipt of Design-Builder s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner s and Design-Builder s responsibility for the Project s security, maintenance, North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 12

15 utilities and insurance pending final payment, and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion Not Used Owner, at its option, may use a portion of the Work which has been determined to be Substantially Complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section above, (ii) Design-Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project, and (iii) Owner and Design-Builder agree that Owner s use or occupancy will not interfere with Design-Builder s completion of the remaining Work. 6.7 Final Payment After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has achieved Final Completion At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: An affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner s interests; A general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; Consent of Design-Builder s surety, if any, to final payment; All operating manuals, warranties and other deliverables required by the Contract Documents; and Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents Not Used Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the Punch List if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and 2.10 herein, and shall not be a reason to withhold final payment from Design-Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 13

16 7.1 Patent and Copyright Infringement. Article 7 Indemnification Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design- Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys fees and expenses awarded against Owner or Design- Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design-Builder shall promptly, at Design- Builder s option and at Design-Builder s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright Sections and above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section above The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright. 7.2 Tax Claim Indemnification If, in accordance with Owner s direction, an exemption for all or part of the Work is claimed for taxes, Owner shall indemnify, defend and hold harmless Design-Builder from and against any liability, penalty, interest, fine, tax assessment, attorneys fees or other expenses or costs incurred by Design-Builder as a result of any action taken by Design-Builder in accordance with Owner s directive. Owner shall furnish Design-Builder with any applicable tax exemption certificates necessary to obtain such exemption, upon which Design-Builder may rely. 7.3 Payment Claim Indemnification Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic s liens brought against Owner or against the Project as a result of the failure of Design- Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic s lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys fees. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 14

17 7.4 Design-Builder s General Indemnification. Design-Builder shall defend, indemnify, and hold Owner harmless from and against all claims, demands, losses, damages, or costs, including but not limited to damages arising out of bodily injury or death to persons and damage to property, caused by or resulting from: The sole negligence of Design-Builder or any of its Subcontractors; The concurrent negligence of Design-Builder, or any Subcontractor, but only to the extent of the negligence of Design-Builder or such Subcontractor; and The use of any design, process, or equipment which constitutes an infringement of any United States patent presently issued, or violates any other proprietary interest, including copyright, trademark, and trade secret In any action against Owner and any other entity indemnified in accordance with this section, by any employee of Design-Builder, its Subcontractors, Sub-subcontractors, agents, or anyone directly or indirectly employed by any of them, the indemnification obligation of this section shall not be limited by a limit on the amount or type of damages, compensation, or benefits payable by or for Design-Builder or any Subcontractor under RCW Title 51, the Industrial Insurance Act, or any other employee benefit acts. In addition, Design-Builder specifically waives immunity as to Owner and A/E only, in accordance with RCW Title Not Used. Article 8 Time 8.1 Obligation to Achieve the Contract Times Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement. 8.2 Delays to the Work If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner s control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, and Force Majeure Events In addition to Design-Builder s right to a time extension for those events set forth in Section above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for Force Majeure Events unless otherwise provided in the Agreement. North Campus Student Housing Phase IV(b) Oak Hall and Lewis Grove UW Project No Page 15